Town of Bayard v. Baker

Seevers, C. J. 1. tííwns fpas nance .-yeas and nays. — I. It is contended that the yeas and nays were not called and recorded upon the passage of the ordinance, as required by section 498 of the Code. The corporate authority is vested m a mayor, recorder and six trustees, Q0q6j sec. 511. The record discloses that it was moved and seconded that the ordinance be passed. [222] Five trustees and the mayor voted in favor of the ordinance, and such fact was duly recorded. It is true it does not appear that the nays were called, but as the record fails to disclose that any other members of the council were present than those persons who voted “yea,” it was unnecessary to call for the nays. 2. _._. wfafthref readings. II. It is objected that the ordinance was not read on three different days, and that three-fourths of the council did not dispense with the rule, as provided in Code, section 489. The abstract discloses that it was moved and seconded that the rules be suspended, and the ordinance read the second time ; and also it was afterwards moved that the rules be suspended and the ordinance be read the third time. Three-fourths of the council voted in favor of these propositions. If we understand counsel, it is claimed that there is a substantial and material difference between “dispense” and “suspend.” In this view we are unable to concur. III. It is said that the ordinance contains more than one subject, and is therefore void. Counsel have not seen proper to state wherein the ordinance is amenable to the objection, and therefore we deem it sufficient to say it is not well taken. IV. It is said that the ordinance is practically prohibitory, and conflicts with or goes beyond the object and scope of the title. Clearly, in our opinion, the ordinance is not prohibitory, and therefore it is entirely consistent with the title. 3. ____ ' publication: 4. __.__. evidence. V. It is urged that no competent evidence of the publication of the ordinance was introduced. The recorder testified that it was published in the Bayard News on the twenty-third day of March, 1888. This evidence was competent (Town of Eldora, v. Burlingame, 62 Iowa, 32), but not sufficient, it is further insisted. It is provided by statute that “ all ordinances shall * * * be pulished in a newspaper of general circulation in the municipal corporation.” It is said that the Bayard [223] N ews is not shown to be a newspaper of general circulation in the corporation. This, in the absence of any-showing to the contrary, will be presumed, for the reason that the presumption obtains that officers perform the duties with which they are charged. Besides this, the recorder certified that the ordinance introduced in evidence was “a true copy of ordinance No. 21, of the incorporated town of Bayard, as passed by the town council at the meeting of March 21, 1888.” Conceding the sufficiency of the certificate, the ordinance was at least prima facie admissible. Such is the effect of the case cited. The ordinance was duly certified by the proper officer, and the presumption must obtain that it was properly recorded, in the absence of evidence to the contrary. 5 _.__. éateof reoorderto copy, VI. It is urged that the certificate of the recorder to the copy of the ordinance introduced in the evidence was insufficient; it did not state that it was a fair and accurate record of this so-called ordinance, made under the direction of the council', or any ■ record ■ whatever, or that the paper offered in evidence was a transcript of such record. We deem it sufficient to say that in our opinion the certificate above set out is clear] y sufficient, 6. fnfomS: VII. The ordinance provides “that any person, who shall stand any jack, stallion, or bull, or try to let any jack, stallion, or bull, to. any mare or cow> unless within an inclosure so arranged as to obstruct the public view, and in such place as to prevent the noise thereof from disturbing the public or private, families or persons within the town,” he should be punished as prescribed in the ordinance. The ordinance introduced in evidence was designated as “No. 21,” and -the information -was entitled, “ The incorporated town, of Bayard v. Prank Baker, before Thos. Stevenson, mayor of the incorporated town of Bayardj county of Guthrie, and state of Iowa,” and it proceeded to state that “the defendant * * is accused of the crime of violating ordinance [224] No. 21, for that the said defendant, at the town of Bayard * * * did, * * * against the peace of the state of Iowa, and contrary to the provisions of ordinanceNo; 21, entitled‘Anordinance,’ * * * passed the twenty-first day of March, A. D. 1888, in such cases made and provided, and against the peace and dignity and good order of said town of Bayard.” It is' objected that the information is insufficient because it does not appear that any or what town or city passed the ordinance. It is true that it does not so appear in express words, yet we think the information is clearly sufficient. Any person of ordinary understanding, reading the information, would readily reach the conclusion that the defendant was charged with violating ordinance No. 21, passed by the incorporated town of Bayard. The same strictness is not required in an information for violating an ordinance as in an indictment (1 Dill. Mun. Corp. sec. 414) ; and we incline to think the information is sufficient under Code, section 4305. 7.' - — ; aupi'icVIII. The standing, or letting, or trying to let, any jack, stallion, or bull to any mare or cow is not prohibited, unless the same be attempted at an improper place. The offense consists in doing the prohibited act at such place. Therefore the information does not charge two offenses, and is direct and certain; the charge being that the defendant “did then and there let or try to let a stallion serve a mare, ’ ’ for the reason that such acts do not constitute any offense unless the same was done at a>prohibited place, which it is not claimed is not properly charged in the information. IX. There are other objections made to the infortion, of a similar character, none of which, in our judgment, are well taken. All the points made by counsel are exceedingly technical, and without substantial merit. It is also said that the verdict is not sustained by the evidence. We think differently. Affirmed.